Christian Political Theory and Church Politics in the Mid-Twelfth Century: The Ecclesiology of the Gratian's Decretum

By Stanley Chodorow

This title is part of UC Press's Voices Revived program, which commemorates University of California Press’s mission to seek out and cultivate the brightest minds and give them voice, reach, and impact. Drawing on a backlist dating to 1893, Voices Revived makes high-quality, peer-reviewed scholarship accessible once again using print-on-demand technology. This title was originally published in 1972.

• Language: English
• Publisher: University of California Press
• Release date: Nov 15, 2023
• ISBN: 9780520333468

Stanley Chodorow

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Christian Political Theory and Church Politics

in the Mid-Twelfth Century

Published under the auspices of the

CENTER FOR MEDIEVAL AND RENAISSANCE STUDIES

University of California, Los Angeles

Publications of the

CENTER FOR MEDIEVAL AND RENAISSANCE STUDIES, UCLA

1. Jeffrey Burton Russell: Dissent and Reform in the Early Middle Ages

2. C. D. O’Malley: Leonardo’s Legacy

3. Richard H. Rouse: Serial Bibliographies for Medieval Studies

4. Speros Vryonis, Jr.: The Decline of Medieval Hellenism in Asia Minor and the Process of Islamization from the Eleventh through the Fifteenth Century

5. Stanley Chodorow: Christian Political Theory and Church Politics in the MidTwelfth Century

Christian Political Theory

and Church Politics

in the Mid-Twelfth Century

The Ecclesiology of Gratian’s Decretum

Stanley Chodorow

Berkeley Los Angeles London

UNIVERSITY OF CALIFORNIA PRESS

1972

University of California Press

Berkeley and Los Angeles, California

University of California Press, Ltd.

London, England

Copyright © 1972 by The Regents of the University of California

ISBN: 0-520-01850-8

Library of Congress Catalog Card Number: 71-138512

Designed by Jorn B. Jorgensen

Printed in the United States of America

FOR MY PARENTS

Doris and Julius Chodoroiv

Preface

When I started working on the Decretum Gratiani, I intended to study the Magister’s ecclesiology and to compare his ideas with those of his contemporaries. As the study progressed, I began to see striking similarities between Gratian’s work and other works I was reading. When I delved into the political history of the period in which the Decretum was written, I saw the connections between Gratian and his contemporaries more clearly than I had before. My studies on the Decretum have shown that his generation of intellectuals—including Saint Bernard of Clairvaux, Peter the Venerable, Gerhoh of Reichersberg, and other well-known writers—was deeply involved in ecclesiastical politics and that the political situation had a profound effect on their thought.

The result of this development of my original theme is that two normally separate areas of medieval historical scholarship have been brought together in this book. The intellectual history of the twelfth century, especially that part of it dealing with political and legal thought, has been united with the political history of the period. The contribution that I have tried to make to political history demonstrates clearly what all historians should always keep in mind: Politics and political thought are often intimately connected and study of both subjects is necessary if a satisfactory picture of political history is to be constructed.

As in all projects like this one, I owe thanks to many people for aid and encouragement, and it gives me great pleasure to mention at least some of them here. First, I want to thank Professor Brian Tierney of Cornell University who first interested me in medieval history and then took on the task of making me a historian. He has seen many drafts of this work and offered innumerable suggestions for its improvement. His help is deeply appreciated. Second, much of the research that went into this book was done during the fourteen months I spent at the University of Tübingen, Germany. I want to thank the Alexander von Humboldt Stiftung for enabling me to go to Tübingen through a generous fellowship. While at Tübingen, I worked with Professor Horst Fuhrmann who gave me a great deal of help in the course of my research. He also read and commented upon a part of the original draft of my work, and his comments were very helpful. Third, Professor Donald Kagan of Yale University and Professor Steven Muller of Cornell, who were on my doctoral committee, have made suggestions for which I am grateful. Fourth, I want to thank two typists, Mrs. Louise Massicci and Mrs. Eunice Konoid, who did excellent work notwithstanding the obstacles presented by a text and footnotes in several languages. Finally, in mentioning my wife, Peggy, I can only indicate the enormous debt that I owe her. She has been not only my steady support while I labored with Gratian and his friends but also my best critic and editor.

I have undertaken a broad subject touching on several branches of medieval intellectual and political history. There are bound to be lacunae and errors in such a work, and I of course take full responsibility for them.

Contents 1

Contents 1

Abbreviations

I. Introduction

II. Gratian and Church Politics

Reforming the reform papacy.

The policy positions of the two parties.

Gratian and the reform party.

III. The Church as a Juridical Community

The foundation of the Church.

Membership in the Church according to Gratian’s contemporaries.

Membership in the Church according to Gratian.

IV. Human Authority and the Hierarchy of Law

Gratian’s argument in the Tractatus de legibus.

V. Human Authority and the Divine Law

The theory of obedience.

The sacrament of penitence.

VI. Human Authority and Its Own Law: The Theory of Legislative Power

The Tractatus de legibus

Causa 25

The historical importance of the theory of legislative power.

VII. Sacerdotal Power and the Hierarchy of the Church

The problem of sacerdotal power.

Sacerdotal power according to the schools oj Laon, Saint Victor, and Peter Abelard.

Sacerdotal potver according to Gratian.

The ordo episcopalis and the position of the Pope.

VIII. The Source of Legitimate Authority in the Church

The election: Choice of God or the community?

The ordination: The priest’s reception of power and authority.

The theory of the electorate: Its historical and constitutional importance.

IX. The Division of Governmental Responsibilities Between Regnum and Sacerdotium: The Ecclesiastical Community and Other Communities

The division of legislative and judicial potvers.

The use of force by the Church.

X. Conclusions

The Decretum in the twelfth century.

The place of the Decretum in medieval political theory.

Appendix I The Date of the Decretum

Appendix II Saint Bernard and the Law

Bibliography

Index

Abbreviations

AKKR Archiv für katholisches Kirchenrecht

Bernard de Clairvaux Commission d’histoire de l’Ordre de Citeaux, III, Bernard de Clairvaux, Paris, 1953.

CSEL Corpus Scriptorum Ecclesiasticorum Latinorum

DA Deutsches Archiv für Erforschung des Mittelalters

DDC Dictionnaire de droit canonique

DTC Dictionnaire de Théologie catholique

Études Le Bras Études d’histoire du droit canonique dediées à Gabriel Le Bras. 2 vols., Paris, 1965.

JL Regesta Pontificum Romanorum, ed. P. Jaffé; 2d ed., 2 vols., ed.

S. Loewenfeld, 1885-1888.

Mansi Mansi, J. D., Sacrorum Concïliorum Collectio

MGH Monumenta Germaniae Histórica

PL J. P. Migne, Patrologiae cursus completas, series latina

RHD Revue historique de droit français et étranger

RHE Revue d’histoire ecclesiastique

SG Studia Gratiana

SMGBOZ Studien und Mitteilungen zur Geschichte des Benediktiner-Ordens und seine Zeige

ZRG, Kan. Abt. Zeitschrift der SavignyStiftung für Rechtsgeschichte, Kanonistische Abteilung

All English quotations of the Bible are from the Douay version.

I. Introduction

Shortly after 1139 the Bolognese monk Gratian completed and circulated a great collection of the ancient canons of the Church, the Decretum Gratiani as it was to be called. This work became the foundation of a new science of canon law separate from the study of theology. A school of canon law arose in Bologna very soon after the appearance of the Decretum, and a few years later, schools were founded in cities north of the Alps.¹ During the 1140’s and 1150’s, the leading canonists of these schools, the decretists who commented on the Decretum, were students of Gratian; among them was Rolandus Bandinelli who, in 1159, was to become Pope Alexander III, the first of the great lawyer popes of the Middle Ages. Gratian holds the preeminent position in the history of canonical jurisprudence not only because he was the teacher of the first generation of canon law specialists but also because he provided the basic textbook of that law for future generations of student lawyers and the basic legal sourcebook for judges and practicing lawyers in the canon law system. Medieval canonists looked upon Gratian as the Magister; they valued his work both for its content and its methodological innovations.

More than anything else it is his method of treating the canons which has earned Gratian the title of father of the science of canon law.² The Decretum is a massive collection of the ancient law of the Church which goes beyond any of the numerous previous collections of the eleventh and twelfth centuries, but it is a presentation of the old law with a new twist. The Magister applied to the law new methods first employed by the early scholastic theologians in their treatment of patristic texts. He gave later ecclesiastical lawyers a means by which the contradictions found in the canons could be brought to light and then eliminated. Arranging the law into an effective order according to subject, he tried to reconcile the different doctrines that it often produced. In his dicta, he made distinctions, exceptions, and sometimes excuses in order to resolve difficulties raised by the canons. His position in the history of canonical jurisprudence is therefore similar to Peter Abelard’s position in the development of scholastic theology, and several scholars have argued that he took his method from Abelard.³

The influence of the development of scholastic theology on Gratian’s method is also recognized by scholars. Kuttner argued that Gratian’s method derived from Abelard’s treatment of patristic texts in Sic et Non and most scholars have accepted his view. Bliemetzrider, however, has argued for the importance of the school of Laon as the chief source of the Magister’s method. Kuttner, Zur Frage der theologischen Vorlagen Gratians, ZRG, Kan. Abt., 24 (1934), 243-268. Idem, The Father of the Science of Canon Law, pp. 10 ff. Van Hove, Quae Gratianus contulerit methodo scientiae canonicae, pp. 23 f. Stickler, op. cit., pp. 193-194. Kuttner supported Thaner’s position that Gratian was theologically closer to Abelard and especially Hugh of Saint Victor than to anyone else. Friedrich Thaner, Abaelard und das kanonische Recht (Graz, 1900). For Bliemetzrieder’s argument, see Franz Bliemetzrieder, Gratian und die Schule Anselms von Laon, AKKR, 112 (1932), 37-63. Most recently, D. E. Luscombe, The School of Abelard (Cambridge, 1969).

Gratian’s work remained in use, while Abelard’s did not, because Gratian expounded legal doctrines that were seminal in the history of law, and because he incorporated the greater part of the ancient law of the Church into his work. The Decretimi is at once a model of method and of the comprehensive presentation of the vast legal tradition. Theologians had to wait for Peter Lombard’s Sentences before they possessed a similar model.

Gratian’s work and the legal system that arose from it are of interest not only to those concerned with the history of the Church and its institutions but also to those who study the history of secular legal systems in the West. During the past few decades, scholars have shown that many of the lawyers who were responsible for the development of governmental and legal institutions in the secular kingdoms of medieval Europe were trained in canon law. Through the agency of these men, the doctrine of Gratian, and that of the decretists, holds an important place in the history of constitutional government. At the same time, canon law doctrines justified the international political activity of the popes of the eleventh through fourteenth centuries. Canonical theories of world order therefore hold a prominent place in the history of the disputes between regnum and sacerdotium. Historians have come to recognize that canon law and its practitioners played a very

3 significant role in the political as well as legal history of the West.⁴ Gratian, as the father of canonical jurisprudence, is a preeminent figure in the history of Western law and government as well as in the history of ecclesiastical institutions.

Ironically, awareness of Gratian’s importance has had an unfortunate effect upon those who have studied his work. They have looked at the Decretum as the beginning of something new and exciting in the history of the Middle Ages; it has been treated as part of the legal system based upon it. The problem with this approach is that it limits our appreciation of Gratian’s achievement. The tendency of historians to fix upon elements of ancient times which can be linked with present-day or at least later institutions, ideas, or events has been carried to the extreme in Gratian scholarship. In the corpus of that scholarship, there are many articles that present excellent analyses of the Magister’s doctrines on one point or another,⁵ but there is no attempt, with only one exception to be discussed shortly, to study the work as a whole and to determine its general orientation. From studies of Gratian’s doctrines, nothing is learned about the importance of the Decretum at the time it was written or about the Magister’s purposes in undertaking his enormous task. The aim of this book is to assess the historical significance of the Decretum in the year 1140 or thereabouts. The basic question to be answered is: What was Gratian trying to do in the Decretum?

It is important to note that an understanding of or at least a concern for the original purpose of the work seems to have been lost very early in its history. The different names given to the work by Gratian and his successors provide a hint of the different views of the work held by him and the schools. The decretists called the work the Decretum or Decreta and thereby emphasized that for them it was a canonical collection—in fact, it was the canonical collection. Gratian called his work the Concordia discordantium canonum, the Concordance of Discordant Canons, and thus emphasized the methodological innovations that he made in it.⁶ Gratian’s title implies that he was conscious of his role as a reformer of the legal tradition of the Church. Why did he undertake to reform the law? There are two possible answers to that question. First, he may have been a part of the intellectual movement associated with Abelard and the early scholastic theologians. In this case, his effort would have to be understood as purely intellectual, one might say academic, in character. Second, he may have had other motives for his reform of Church law, motives that would become clear only when one studies the historical context in which he wrote the work.

During the years when he compiled the Decretum and taught law at Bologna, Gratian lived in the Camaldulese monastery of Saints Felix and Nabor.⁷ It is therefore easy to assume that he was not a man of this world and that his work is indeed the product of the new emphasis on logic and reason in understanding the teaching of Christ and the Fathers. In fact, all studies of Gratian’s work have been based on this assumption, and making this assumption has freed scholars from considering what effect, if any, the events of Gratian’s times had on his ideas and interests. Yet, it is true that medieval canon lawyers, both before and after Gratian, played an active role in the politics of their times or at least that their collections were profoundly affected by events and political ideas.⁸ It is also true that the Magister did not

simply offer to his contemporaries and successors a comprehensive treatment of ecclesiastical law. He left much of importance out of account and later canonists made extensive additions to his work. Also, historians take for granted the worldliness and activity of Saint Bernard of Clairvaux and Peter the Venerable of Cluny, and they know that other monastic leaders of the twelfth century were deeply involved in the affairs of both the Church and the secular kingdoms. They have assumed, however, that the monk Gratian was a man buried away in a monastery in Bologna teaching and writing about the law—a study traditionally connected with things worldly—but supposedly unaffected by the world around him. Scholars have therefore concluded that the first answer to the question about Gratian’s purpose in the Decretum is correct; they have assumed that the Magister sought only to reform the law of the Church according to methods established by Abelard and others in the study of theology. Gratian was a monastic intellectual apart from the world and oblivious to its goings-on.

Looking at the history of canon law and of the mid-twelfth century, one can make a strong argument supporting the view that Gratian was affected by the political events and movements of his day and that his work exhibits an interest in the issues raised during his times. The thesis of this book is that the purpose, structure, and orientation—ultimately, the meaning—of the Decretum can only be understood if its connection with the developments within the Church at the time it was written is grasped. This is not to deny that the Magister was concerned with methodology or that he saw his work as a decisive step forward in the treatment of canon law. No one can deny that he had a profound intellectual motivation in undertaking his work. But concentrating

attention on his use of the dialectical method will not help in understanding the substance of his teaching. For a complete understanding of the Magister’s aims and the character of his thought, the Decretum must be looked at from the perspective of the 1120’s and 1130’s, the period when he was compiling it. In addition, the ideas set forth in the Decretum must be compared with those expounded in contemporary works. Such a study will show that Gratian sought to develop a Christian theory of the structure of society, and that his work is one of the most significant works of political theory written in the mid-twelfth century. Concern with the relationship between the Decretum and the politics of the period in which it was written makes it necessary to involve oneself in the historiography of twelfth-century political history. But before turning to a consideration of Gratian’s times and to an exposition of his ideas, the most important views presented in earlier studies of his work must be reviewed.

From a historiographical point of view, the most important work of modern scholarship concerning the Decretum is Rudolph Sohm’s Das altfytholische Kirchenrecht und das Dekret Gratians, published posthumously in 1918.⁹ Basically, Sohm argued that scholars who had found a theory of the ecclesiastical constitution in the Decretum had only imposed their own suppositions and ideas on the Magister’s work. The truth of the matter was, he said, that historians could learn nothing whatever about the constitutional law of the medieval Church from the Decretum. Gratian actually sought only to expound the sacramental law of the Church. A review of Sohm’s interpretation will clarify the present state of scholarship concerning the Decretum.

Sohm’s treatment of Gratian’s collection was part of his overall theory of the history of ecclesiastical law.10 He divided the history of that law into three periods, which developed as the emphasis shifted within the Church from spiritual to material concerns. The first stage was the charismatic period, which lasted only up to the end of the first century. The charismatic Church law was unformulated and existed only in the spirit of the early Christian community. Already during the pontificate of Clement I, this primitive law of the spirit had begun to develop by defining the sacraments and by expressing the spirit of the religion in ceremonial. This was the beginning of the second stage in the history of Church law, the sacramental stage. All Church law during this period was sacramental law, according to Sohm, and at least de jure, the ecclesiastical power was wholly devoted to sacramental functions.

The transitional period between this stage and the third stage is the period that is of most interest, because Sohm thought that the change took place in the late twelfth century, after the appearance of the Decretum Gratiani. During this time, ecclesiastical lawyers introduced the idea of jurisdictional power, and the law began to define the power of the priesthood as divided into the powers of orders and jurisdiction. Not until this period did the ecclesiastical hierarchy actually become a governmental authority. The transition in the view of the Church hierarchy’s function led to development of ecclesiastical constitutional law and definition of the power of ecclesiastical officers. 11

The changes in Church law accompanied a new conception of the Church. Sohm argued that the electoral decree of Alexander III, sanctioned by the Third Lateran Council in 1179, was the first official expression of the corporational view of the Ecclesia. The decree refined the electoral procedure for choosing a new pope by making a two- thirds majority of the college of cardinals necessary for a valid election. According to Sohm, this provision was crucial in the history of ecclesiastical law because it codified the new conception of the Church and ensured that the governing power would be a juridically legitimate authority. In the 1170’s the law of the Church took on a new guise and became the law of governmental power as well as of sacraments.12

Gratian’s work, according to Sohm, fits into the second phase of ecclesiastical law. The decretists and historians of law had always considered the Decretum as the beginning of the new and independent science of canon law. Sohm argued that Gratian was actually the last of the great theologians to treat canon law and that the work was wholly concerned with sacramental law. Gratian, wrote Sohm, saw every act of the ecclesiastical hierarchy as a sacrament and recognized no limit on the number of sacraments. Only when the Church was redefined, about two decades after the Magister’s death, did there develop a definite list of sacraments that corresponded with the new understanding of the Church’s place in the world. When traditional hierarchical functions were redefined as acts of a juridical power, sacramental functions had to be circumscribed and defined as well.13

Nearly all the scholarship concerning the Decretum, published both before and after Sohm’s work, has been in some way a refutation of his interpretation. On the whole, scholars working on the doctrine of the Magister have not taken up Sohm’s contentions with a view to refuting them, but the rejection of his ideas has been implicit in their work. These studies of Gratian’s doctrine áre not strictly relevant to the present discussion of Sohm’s interpretation, but one part of the corpus of Gratian scholarship must be considered. Because Sohm based his views on an analysis of the division of the Decretum, the principal reaction to his work has occurred in articles dealing with the many textual problems raised by the Magister’s opus. The amount of work done on these problems is not all the result of Sohm’s challenge, however. As medievalists who specialized in fields other than canon law became aware of Gratian’s importance, they also became interested in the textual difficulties. It is clear that the meaning of the work cannot be understood without arriving at a clear conception of how the work looked when it left the Magister’s workroom.

Modern editions and most manuscripts of the Decretum present it as a work in three parts, the Distinctiones, the Causae, and the Tractatus de consecratione. Sohm argued that the standard divisions were not accurate and that a proper conception of the divisions made by Gratian would show that scholars had misconstrued the Magister’s ideas and interests. 14 Scholars now agree with Sohm about the inadequacy of the modern editions, 15 but they can show that his assertions about the original state of the work are wrong. The conclusions of research on the text of the Decretum done after Sohm made his views known are pertinent to my thesis.16

The most difficult questions about the original state of Gratian’s text concern the additions made by members of the school. The most common kind of addition was the single canon or short series of canons intended to fill gaps in Gratian’s discussions of specific issues and given the name paleae from the Latin word for chaff.17 These canons are identified through the comparison of manuscripts since their order is inconsistent, and they are sometimes left out altogether. Because of the Decretum’s importance during the Middle Ages, there are hundreds of manuscripts of the work, and as the study of these continues, the list of paleae is constantly revised.¹⁸ But the schools were responsible for additions to the Decretum which were much more important than the incorporation of individual paleae. The Tractatus de consecratione, normally considered the third part of the work, now appears to have been a later addition.19 This conclusion is important because of all the parts of the Decretum, the de consecratione is the most theological in character. It concerns the sacraments, and its deletion from the work profoundly affects the interpretation offered by Sohm.

Another part of the edited Decretum now seen as an addition is the Tractatus de penitencia, which makes up Causa 33, quaestio 3. Scholars think that most of this treatise is palea, though some of it constituted the original quaestio 3 of the Causa. The evidence for this view is primarily based on manuscript studies, but there is another strong argument for excluding the treatise from the original Decretum. It is too theological to be considered the work of Gratian. As Wjotyla pointed out, large parts of the de penitencia do not conform to the Magister’s interests as they are exhibited throughout his work.²⁰ When stripped of the Tractati de consecratione and de penitencia, the Decretum becomes very much a work concerned chiefly with the theory and practice of ecclesiastical government.²¹ Sohm’s position has become

untenable, even if it could, at one time, have been taken seriously.

There is one other aspect of the palea problem which should be briefly mentioned here. Many of the texts of the de penitencia which have been rejected as paleae, were taken from the Roman law collection of Justinian.²² Scholars now think that none of the Roman law texts from the Corpus Iuris Civilis were incorporated by the Magister when he compiled his work. The evidence for this view has been built up through the detailed manuscript studies of Vetulani, Kuttner, and Rambaud, and it is very convincing.²³ It has become clear that Gratian consciously avoided the inclusion of Roman law texts in the Decretum. He even took care to delete extracts from that law which were embedded in series of canonical texts that he borrowed from earlier collections; one of the most striking differences getween the Magister and his predecessors is this attitude toward the law of Justinian. No one has been able to suggest a satisfactory explanation for Gratian’s attitude,24 and I shall attempt to do so in the next chapter.

One last part of the textual scholarship on the Decretum is relevant to my thesis about the work’s general orientation. In 1933 two scholars, Franz Gillmann and Adam Vetulani, concluded independently that Gratian himself did not introduce the divisions of the Distinctiones into the first part of the Decretum. They attributed the division to the members of the schools, suggesting that Paucapalea, the first decretist, may have made it. Gillmann went further and suggested that the Magister had organized his book into tractati and that the tractati were subdivided into paragraphs. It is also probable that the division between dicta and capitula, which one finds in the modern editions and in most manuscripts, was not so sharp in the original work.25 Separation between these two elements of the work emphasizes its character as a collection of the canons, among which is interspersed commentary by the collector. The separation also made the work easier to use as a source book for the ancient law of the Church. In its original form, however, the Decretum would have had the appearance of a series of canonical treatises dealing with the structure of ecclesiastical society.²⁶ Gillmann once said that if Rudolph Sohm was correct in his reading of the Decretum, he was the only one to have ever understood it.²⁷ I am in the slightly uncomfortable position of joining Sohm in this stance. In effect, I am arguing that within a few years after the work appeared, the members of the schools changed its character with the result that its original purpose was lost. I do not suggest that the early decretists did not know what Gratian was trying to do in his work, but that they did not have any interest in his original purpose. They remade the collection according to their own view of its significance. What Gratian’s view of his work was will become clear in the next chapter and in the study of his theme in subsequent chapters.

1 There are several general histories of canon law which give the reader a sense of the importance of Gratian’s collection and explain briefly the development of the schools. Alfons Van Hove, Prolegomena ad Codicem Juris Canonici, 2d ed. (Rome, 1945). Alfons M. Stickler, Historia luris Canonici Latini (Turin, 1950). In English, see R. C. Mortimer, Western Canon Law (London, 1953). The work of J. F. von Schulte is still standard for the history of canonical jurisprudence after the appearance of the Decretum. Schulte, ‘ Zur Geschichte der Literatur über das Dekret Gratians," I, Sitzungsberichte der kaiserlichen Akademie der Wissenschaften in Wien, Phil.-Hist. Kl., vol. 63 (1869); II, vol. 64 (1870); III, vol. 65 (1870). Schulte, Die Glosse zur Dekret Gratians von ihren Anfängen bis auf die jüngsten Ausgaben, Denkschriften der kaiserlichen Akademie der Wissenschaften, Phil.-Hist Kl., vol. 21 (1872). Schulte, Die Geschichte der Quellen und Literatur des canonischen Rechts von Gratian bis auf die Gegenwart, 3 vols. (Stuttgart, 1875-1880). Recently, the work of the Anglo- Norman school has been investigated by Stephan Kuttner and E. Rathbone, Anglo-Norman Canonists of the Twelfth Century, Traditio, j (1949-1951), 279-358. See also Kuttner’s article, Les débuts de l’école canoniste française, Studia et documenta historiae et iuris, 4 (1938), 1-14. The most essential work on the output of the canon law schools is Kuttner’s Repertorium der Kanonistik, Prodomus corporis glossarium, Studi e Testi, vol. 71 (Vatican City, 1937).

2 Van Hove, Quae Gratianus contulerit methodo scientiae canonicae, Apollinaris, 2i (1948), 12-24. Kuttner, ‘The Father of the Science of Canon Law," The Jurist, 1 (1941), 2-19.

3 It has proven very difficult for scholars to answer the question: What were the sources of Gratian’s method? Ivo of Chartres, whose collections served as the most important source of canons for the Decretum, wrote a prologus for either his Decretum or his Panormia in which he suggested rules for dealing with contradictions found in the canons. The canonist ought to consider the original purpose of the text because admonitions should yield to statements of law and indulgences should not be given the force of general law. Also, the canonist should ask whether the provisions of the canon were meant to be revocable or irrevocable and whether a dispensation could be granted in certain circumstances. Rules for reconciling contradictions were also briefly expounded by Bernold of Constance in the treatise, De exeommunicatis vitandi*, de reconciliatione lap- sorum et de jontibus iuris canonici (edited in MGH, Libelli de lite II). The most extensive use of the rules outlined by Ivo and Bernold, before Gratian’s work appeared, was found in Alger of Liege’s Uber de misericordia et iustitia. Gratian utilized Alger’s work in his own dicta. Stickler, op. cit., pp. 188-193. Gabriel Le Bras, Alger de Liège et Gratien, Revue des sciences philosophiques et théologiques, 20 (1931), 5-26.

4 Brian Tierney, Medieval Canon Law and Western Constitutionalism, Catholic Historical Review, 52 (1966), 1-17. Gaines Post, Studies in Medieval Legal Thought (Princeton, 1964), Frederick W. Maitland, Roman Canon Law in the Church of England (London, 1898).

5 In 1948, to celebrate the eighth centennial of the Decretum, the journal Apollinaris devoted a volume to it in which the leading scholars were represented —S. Kuttner, A. Van Hove, A. M. Stickler, A. Vetulani, among others. Since 1953, many articles on Gratian have been published in the series Studia Gratiana edited by A. M. Stickler and J. Forchielli. A large number of articles on Gratian and his collection have appeared in other journals as well as in Festschriften.

6 Friedrich Heyer, Der Titel der Kanonessammlung Gratians, ZRG, Kan. Abt., 2 (1912), 336-342. Idem, Namen und Titel des Gratianischen Dekretes, AKKR, 94 (1914), 501-517. Rudolf Köstler, Zum Titel des Gratianischen Dekrets, ZRG, Kan. Abt., 21 (1932), 370-373. Idem, Noch einmal: Zum Titel des Gratianischen Dekrets, 23 (1934), 378-380.

7 Very little is known about Gratian’s life. What is known has been presented by Kuttner in The Father of the Science of Canon Law. See chap, ii, n. 33.

8 Paul Fournier, probably the leading modern scholar of pre-Gratian collections, has pointed out that those collections are divided into two groups, Roman and French. The groups are distinguished by their content and sources. The Roman collections dwell on papal primacy and questions dear to the reformers who won control of the Curia in the eleventh century. Roman collectors did a considerable amount of original archival research in their hunt for canons that would support their political position, but most of the collections are based on the Collection in 74 Titles and the collection of Anselm of Lucca, both of which were closely associated with the reformers. The French collectors based their works on the Decretum of Burchard of Worms (1002-1008). The content of these collections is not limited to the problems of the reform, but range widely over the areas of canon law jurisdiction. This group culminated in the large and well- known collections of Ivo of Chartres, the most important canonist before Gratian. Paul Fournier, Une collection canonique italienne du commencement du Xlle siècle, Annales de l’Enseignement supérieur de Grenoble, 6 (1894), 115. Fournier and Le Bras, Histoire des collections canoniques en Occident (Paris, 1932), 2:115.

9 This work appeared in the Festschrift der Leipziger Juristenfakultät für Adolf Wach (Munich-Leipzig, 1918). It almost seems as if Sohm planned the piece as a time bomb that would go off when he was well out of the way. The reaction to the book has been vehement and long lasting; attacks on it have been made on a wide range of subjects.

Among the works that consider Sohm’s opinions, see H. Barion, Rudolph Sohm und die Grundlegung des Kirchenrechts, Recht und Staat in Geschichte und Gegenwart (Tübingen, 1931). Idem, Der Rechtsbegriff Rudolph Sohms, Deutsche Rechtswissenschaft, 7 (1942), 47-51. Ernst Kohlmeyer, Charisma oder Recht? Vom Wesen des ältesten Kirchenrechts, ZRG, Kan. Abt., 38 (1952), 1-26. G. Kuhlmann, Rudolph Sohm und unsere gegenwärtigen kirchenrechtlichen Situation, Archiv für Kirchenrecht, 5 (1941), 155-172. Max Reischle, Sohms Kirchenrecht und der Streit über das Verhältnis von Recht und Kirche (Giessen, 1895). Joseph de Ghellinck, Le mouvement théologique du XIle siècle (ParisBrussels, 1948), pp. 523-532. For a complete bibliography, Dieter Stoodt, Wort und Recht, Rudolph Sohm und das theologische Problem des Kirchenrechts (Munich, 1962).

10 Besides the work on Gratian, see Sohm’s general history of Church law, Kirchenrecht 1 (Munich-Leipzig, 1892); Kirchenrecht 2, ed. E. Jacobi and O. Mayer (Munich-Leipzig, 1923).

11 Sohm, Das altfytholische Kirchenrecht, pp. 536-674.

12 Ibid., pp. 57-58, 614. passim. One of the most important pieces of evidence used by Sohm in developing his theory that the character of Church law changed in the 1170’s was a decree issued by the general chapter of the Cistercians in 1188. This decree prohibited the study of law by monks of the order, and Sohm argued that the prohibition stemmed from a recognition of the change in emphasis in ecclesiastical law. This argument has been rejected by Stutz in an article devoted to the Cistercians’ attitude toward legal studies. Ulrich Stutz, Die Cistercienser wider Gratians Dekret, ZRG, Kan. Abt., 9 (1919), 63-98.

13 Sohm, Das altĄatholische Kirchenrecht, pp. 81, 583-584. On the development of early scholastic theology of the sacraments, see Damien Van den Eynde, La definition des sacrements pendant la première periode de la théologie scolastique (1050-1235), Antonianum, 24 (1949), 183-228, 439-488 (reprinted as Les définitions des sacrements [Louvain, 1950]). Ghellinck, Un chapitre dans l’histoire de la définition des sacrements au Xlle siècle, Mélanges Mandonnet, II, Bibliothèque thomiste. 14 (Paris, 1930), 79-96. Nicholas M. Häring, Character, Signum und Signaculum. Die Einführung in die Sakramententheologie des 12. Jahrhunderts, Scholastik, 31 (1956), 182-212. On the treatment of the sacraments by the canonists, see Franz Gillmann, Die Siebenzahl der Sakramente bei den Glossatoren des Gratianischen Dekrets, Der Katholik, 89 (1909), 182—214. Ghellinck, La ‘Species quadriformis Sacramen torum’ des canonistes du Xlle siècle et Hugues de Saint-Victor, Revue des sciences philosophiques et théologiques, 6 (1912), 527-537. Arthur Landgraf, Dogmengeschichte der Früh scholastil , vol. 3 (Regensburg, 1954-1955).

14 Sohm proposed that the division of Gratian’s work be understood according to the subject matter. Part one in his scheme consisted of Dist 1-20, the Tractatus de legibus, which treats the sources of law—that is to say, the sources of sacramental law. As will be seen, Gratian considered not only the sources of law in the de legibus but also the relationship between the various kinds of law. His main purpose was to examine the hierarchy of law from the standpoint of the ecclesiastical authority. Sohm ignored this theme in the Tractatus.

Part two extended from Dist. 21 to Causa 26 and treats the sacrament of orders. Part three consisted of the last Causae and the de consecratione, treating the sacrament of marriage and the other sacraments. This division seems strange when one considers the format of the Decretum; the reader naturally expects the Distinctiones, Causae, and de consecratione to make up three integral parts. And Sohm’s distinctions between parts appear even more curious when we consider his division of the second part into two sections. In order to maintain his argument at this point, he argues that Gratian changed course in the middle of a Causa.

The division of part two in Sohm’s system is made at C. i, q. 6. Thus, the first section of part two extends from Dist. 21 to C. 1, q. 6 and the second section from C. i, q. 7 to C. 26. Sohm,